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2021 DIGILAW 1920 (MAD)

R. Munirathinam v. M. Gajendran

2021-07-22

M.SUNDAR

body2021
ORDER : 1. Captioned Criminal O.P. No. 3594 of 2021, which has been filed with a prayer to direct a preliminary enquiry under section 340 of the Code of Criminal Procedure, 1973 (2 of 1974) [Cr.P.C. for the sake of brevity] for proceeding against aforementioned two respondents for a purported offence under section 195(1)(b) of Cr.P.C. has been listed before this Court under the cause list caption FOR MAINTAINABILITY. 2. Short facts sans unnecessary particulars and details, i.e. essential facts imperative for appreciating this order are as follows: (a) Respondents 1 and 2 in captioned Criminal Original Petition [hereinafter Crl. O.P. for the sake of brevity] arraying themselves as petitioners 1 and 2 respectively filed a Original Petition (O.P. for the sake of brevity) in O.P. No. 79 of 2020 on the file of this court under section 11 of the Arbitration and Conciliation Act, 1996 (Act 26 of 1996), which shall hereinafter be referred to as “A” and “C” Act for the sake of brevity with a prayer to appoint a sole arbitrator to adjudicate upon disputes that had arisen between them and other contracting parties in relation to a partnership deed dated 16.07.2019 (hereinafter “said partnership deed” for the sake of brevity). (b) In the aforementioned O.P. under section 11 of “A” and “C” Act, sole petitioner in the captioned Crl. O.P. was arrayed as second respondent. Aforementioned OP under section 11 of “A” and “C” Act was pivoted on a covenant/clause captioned Dispute Resolution in the said partnership deed, which provides for resolution of disputes arising out of said partnership deed by arbitration. In other words, aforementioned O.P. under section 11 of “A” and “C” Act was predicated on the plea that the dispute resolution clause in said partnership deed serves an arbitration agreement between parties within the meaning of section 2(1)(b) read with section 7 of “A” and “C” Act. (c) The arbitration OP was resisted by respondents therein primarily on the ground that said partnership deed is a document that has been made by making use of signatures obtained from respondents therein in blank stamp papers. To be noted, signatures of second respondent (petitioner in captioned Crl. O.P.) in said partnership deed were not disputed. (c) The arbitration OP was resisted by respondents therein primarily on the ground that said partnership deed is a document that has been made by making use of signatures obtained from respondents therein in blank stamp papers. To be noted, signatures of second respondent (petitioner in captioned Crl. O.P.) in said partnership deed were not disputed. Transaction between parties was also not disputed, but it was only pleaded that some blank stamp papers signed at the time of a loan transaction were used for preparing said partnership deed. (d) As the scope of a OP under section 11 of “A” and “C” Act is very narrow, this court, placing reliance on Mayavati Trading principle being law laid down by Hon'ble Supreme Court in Mayavati Trading Private Limited vs. Pradyuat Deb Burman, (2019) 8 SCC 714 turning on sub section (6-A) of section 11 of A and C Act disposed of the arbitration O.P. (after full contest) in and by an order dated 18.02.2020. To be noted, by this order, a retired Judge in the district judiciary in Tamil Nadu was appointed as sole arbitrator and the question regarding said partnership deed being gotten up by using stamp papers said to have been signed blank was left open to be decided by the Arbitral Tribunal, as that would inter-alia turn on arbitral tribunal ruling on its own jurisdiction. (e) Aforementioned order made by this Court in the abovesaid arbitration O.P. was assailed (inter-alia by petitioner in captioned Crl. O.P.) by carrying the matter to Hon'ble Supreme Court under Article 136 of the Constitution of India by way of a Petition for Special Leave to Appeal (C) No. 11624 of 2020, but Hon'ble Supreme Court refused to interfere with the order of this court. In other words, the SLP was dismissed by Hon'ble Supreme Court vide order dated 12.01.2021 inter-alia observing that petitioners would be at liberty to raise all the objections including validity of the agreement and deeds before the Arbitrator. (f) This court is now informed that arbitral tribunal has commenced sittings, sittings are under way and arbitral tribunal has also made some orders inter-alia ruling on its own jurisdiction. (g) In the aforesaid circumstances, captioned Crl. O.P. has been filed in this court on 27.01.2021 with a prayer to direct a preliminary enquiry under section 340 of Cr.P.C for a purported/alleged offence under section 195(1)(b) of Cr.P.C. 3. (g) In the aforesaid circumstances, captioned Crl. O.P. has been filed in this court on 27.01.2021 with a prayer to direct a preliminary enquiry under section 340 of Cr.P.C for a purported/alleged offence under section 195(1)(b) of Cr.P.C. 3. This Court heard Mr. D. Shivakumaran, learned counsel for petitioner elaborately on maintainability and perused the case file. The points urged in the hearing by learned counsel, points raised in the Crl. O.P. discussion of the same and dispositive reasoning qua the same are set out infra in this order in the paragraphs to follow. 4. It was urged that a mortgage deed dated 13.10.2018 has been executed in a non judicial stamp paper of posterior date 16.11.2018. A royalty agreement dated 31.03.2019 has also been executed on a non judicial stamp paper of posterior date 01.06.2019 and all these form part of a loan transaction between parties which is admitted is his further say. To be noted, the petitioner in captioned Crl. O.P. does not dispute that he had borrowed from respondents, but with regard to said partnership deed, it is submitted that non judicial stamp paper dated 16.07.2019 has been purchased from the same vendor in Dharmapuri District and the preamble portion says the document was executed in Salem District on 16.07.2019, but the last page shows that it has been notarized in Chennai. This argument does not impress this court as in the arbitration OP under section 11 of “A” and “C” Act, this court was concerned only with the partnership deed dated 16.07.2019 in which there is a arbitration clause. As far as said partnership deed is concerned, the date of non judicial stamp paper and date of document are same, i.e. 16.07.2019. In any event, whether this is a gotten up document was an issue which is left open to be decided by arbitral tribunal vide order of this Court in the OP under section 11 of “A” and “C” Act and as alluded to supra, Hon'ble Supreme Court has also dismissed the SLP assailing the order of this court. 5. In any event, whether this is a gotten up document was an issue which is left open to be decided by arbitral tribunal vide order of this Court in the OP under section 11 of “A” and “C” Act and as alluded to supra, Hon'ble Supreme Court has also dismissed the SLP assailing the order of this court. 5. As mentioned supra in the narrative of facts, this court was informed that arbitral tribunal is in seizin of this issue and some orders inter-alia ruling on its own jurisdiction have also been made, but it is not necessary to delve or plough further into these facts and trajectory as the same are not germane to the instant Crl. O.P. on hand. Regarding other documents, such as mortgage deed and royalty agreement, they are all matters on merit which are in the purview of arbitral tribunal. This court is informed that the arbitral tribunal is in seizin of the matter and has also made some orders inter-alia ruling on its jurisdiction. Therefore, this argument that there was a simple loan transaction between parties, blank stamp papers signed by petitioners while borrowing have been used to create said partnership deed and some other documents does not hold water in instant Crl. O.P. 6. As already alluded to supra, this court is not concerned with the mortgage deed or royalty agreement as they are in the purview and realm of disputes before the arbitral tribunal. 7. The next point is in the nature of a sequitter to the previous point and this is more fundamental. This is more fundamental because section 195(1)(b)(ii) of Cr.P.C would be attracted only when the offences enumerated in the said provision are committed with respect to a document after it has been produced or given in evidence in any proceedings in any court, i.e. during the time when the document was custodia legis qua Court. This position of law has been declared by a Constitution Bench of Hon'ble Supreme Court in the oft-quoted Iqbal Singh Marwah vs. Meenakshi Marwah, (2005) 4 SCC 370 . Relevant paragraph in Iqbal Singh Marwah case is paragraph 34 and the same reads as follows: “34. In the present case, the Will has been produced in the court subsequently. This position of law has been declared by a Constitution Bench of Hon'ble Supreme Court in the oft-quoted Iqbal Singh Marwah vs. Meenakshi Marwah, (2005) 4 SCC 370 . Relevant paragraph in Iqbal Singh Marwah case is paragraph 34 and the same reads as follows: “34. In the present case, the Will has been produced in the court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.” 8. A perusal of the narration of facts and the basis on which captioned Crl. O.P. has been filed makes it clear that this is not a case where forgery or any other offences enumerated under section 195(1)(b) of Cr.P.C. have been committed when said partnership deed was in the custody of this court and the allegation, at the highest is, this is a gotten up document which has been prepared prior to filing of OP under “A” and “C” Act. Therefore, the very foundation or fundamental principle that section 195(1)(b) is attracted is absent in this case. 9. This court also noticed that post Iqbal Singh Marwah case, Hon'ble Supreme Court in State of Punjab vs. Jasbir Singh, (2020) 12 SCC 96 had referred the question as to whether Cr.P.C. mandates a preliminary enquiry and an opportunity of hearing to the would be accused should be given vide section 340 Cr.P.C. when a complaint is made under section 195 of Cr.P.C. and the scope and ambit of a preliminary enquiry under section 340 Cr.P.C. but, it is not necessary to delve into this aspect as in this case it is clear that the requirement of offences adumbrated in section 195(1)(b) being committed when the document was custodia legis qua this court is absent in this case. 10. This court now proceeds to deal with the case laws that were pressed into service by learned counsel for petitioners. 10. This court now proceeds to deal with the case laws that were pressed into service by learned counsel for petitioners. The case laws pressed into service by learned counsel for petitioners are as follows: (i) Narendra Kumar Srivastava vs. State of Bihar, (2019) 3 SCC 318 (ii) The Lakshmi Vilas Bank Ltd. vs. M/s. Sun Finance and Others, 1995 (2) L.W. 574 (iii) R. Murugesan vs. The Subordinate Judge, Namakkal, 2016 (2) L.W. 421 (iv) New Era Fabrics Limited vs. Bhanumati Keshrichand Jhaveri, (2020) 4 SCC 41 11. In Narendra Kumar Srivastava case, the question was whether a judicial magistrate can take cognizance of an alleged offence under section 193 Cr.P.C. on the basis of a private complaint when the complaint/allegation is that the accused had introduced false /wrong statement vide show cause affidavit leading to High Court dropping the proceedings. In other words, it pertains to contempt proceedings. This case is therefore clearly very different on facts and it does not help the petitioner. Further more, this case makes no departure from the law laid down by Constitution Bench in Iqbal Singh Marwah case (supra). 12. Lakshmi Vilas Bank Ltd case was rendered by a Hon'ble Division Bench of this Court. This is a judgment rendered in a regular appeal suit wherein Hon'ble Division Bench had returned a factual finding that defendant No. 2 in that case had deposed as DW-1 and given false evidence with the intention of wriggling out of liability and therefore, this case law does not apply to the case on hand. Further, Lakshmi Vilas Bank case law was rendered on 02.02.1995 more than a decade before declaration of law by the Constitution Bench of Hon'ble Supreme Court in Iqbal Singh Marwah case which was rendered by Constitution Bench on 11.03.2005. 13. This takes us to R. Murugesan's case. This is a case where there was fabrication of agreement of sale and dispossession of the litigant from the leasehold property by using the same. 13. This takes us to R. Murugesan's case. This is a case where there was fabrication of agreement of sale and dispossession of the litigant from the leasehold property by using the same. This case law rendered by a Hon'ble Single Judge of this court has referred to Chitlapakkam Town Panchayat 2015 (2) CTC 681 with approval and has even extracted paragraph 58 of Chitlapakkam Town Panchayat case, wherein paragraph 12 of Sachida Nand Singh case 1998 SCC (Crl) 660, has been extracted and it has been held that it would be strained thinking to say that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as an offence affecting administration of justice merely because that document later reached the Court records. However, it is also seen that this is a case wherein declaration of law in Iqbal Singh Marwah case has not been considered. No elucidation is required to say that a legal principle or proposition laid down by a Constitution Bench is not merely a legal precedent, but it gets elevated to the status of declaration of law. Therefore, this court respectfully follows the law declared by a Constitution Bench of Hon'ble Supreme Court in Iqbal Singh Marwah case, i.e. the law that the alleged offence should have been committed when the document is in the custody of the court, i.e. custodia legis qua Court for section 195(1)(b) Cr.P.C. to be attracted. 14. This takes us to the New Era Fabrics Limited case, which was rendered by a two member Bench of Hon'ble Supreme Court wherein Hon'ble Supreme Court itself found that in the SLP proceedings before it, the words which read as weighted average number of equity shares was changed as number of equity shares as on 1-4-2007. This was noticed by Hon'ble Supreme Court by comparing the document concerned as filed in the court below and Hon'ble Supreme Court. Therefore, this is clearly a case where a document was tampered with and changes were made when it was in the custody of Hon'ble Supreme Court, i.e. custodia legis. This was noticed by Hon'ble Supreme Court by comparing the document concerned as filed in the court below and Hon'ble Supreme Court. Therefore, this is clearly a case where a document was tampered with and changes were made when it was in the custody of Hon'ble Supreme Court, i.e. custodia legis. This certainly does not help the case of petitioners as case on hand is not one where it is nobody's case that said partnership deed or any other document for that matter was tampered with or blank signed papers were misused when such documents/blank signed papers were in the custody of this court. In other words, this is not a case of tampering/fabrication custodio legis. 15. The next point that is noticed by this court is, as alluded to supra, this court is informed that the proceedings before the arbitral tribunal have already been kick started and the arbitral tribunal has even returned some findings inter-alia on the preliminary issue of ruling on its own jurisdiction which obviously will turn on said partnership deed and the arbitration clause therein which serves as arbitration agreement between the parties. If the petitioner has any grievance in this regard, it is always open to the petitioner to seek remedy under “A” and “C” Act. 16. This court notices that it is not a case where the petitioner is not without any remedy. By this order, this court only says that Section 195(1)(b) Cr.P.C. is not attracted as alleged offences have not been committed when the document was custodia legis qua this Court. In other words, nothing prevents the other remedies if available to the petitioner in law. To be noted, the extracted paragraph supra in Iqbal Singh Marwah case (paragraph 34) itself makes it clear that there is no embargo on a criminal court to take cognizance if a complaint is filed. Therefore, if the petitioner chooses to pursue such a course, it is made clear that this order will neither impede nor be an impetus to any of the parties in such proceedings. In other words, if the petitioner chooses to pursue other avenues available, section 195 Cr.P.C. will not act as a bar. In this regard, this court deems it appropriate to record that this is evident from 19.06.2020 order in arbitration O.P. that the trigger notice qua arbitration proceedings is dated 21.09.2019 and reply notice is dated 15.10.2019. In other words, if the petitioner chooses to pursue other avenues available, section 195 Cr.P.C. will not act as a bar. In this regard, this court deems it appropriate to record that this is evident from 19.06.2020 order in arbitration O.P. that the trigger notice qua arbitration proceedings is dated 21.09.2019 and reply notice is dated 15.10.2019. According to the petitioner in captioned Crl. O.P. in this reply notice itself, more particularly in paragraph 5(h) of reply notice, it has been averred that blank papers were signed, but the petitioner had not kick started any proceedings until section 11 O.P. was filed on 04.02.2020. 17. On an extreme demurrer, this court now tests the matter by examining the position if a document fabricated before production in court is also covered under the sweep of this matter. The petitioner will still not clear the fence as the scope of section 11 of “A” and “C” Act is so limited that the question of examining whether a document is forged will not arise. Section 11 is a summary procedure and this has been greatly narrowed down by sub section (6-A). This is the reason why this court had left it to arbitral tribunal to decide on plea of said partnership deed being forged as it contains the arbitration clause which serves as arbitration agreement and therefore, would be a case of arbitral tribunal ruling on its own jurisdiction. 18. In this regard, it is deemed appropriate to observe that on an extreme demurrer, even if all the averments pertaining to said partnership deed in Crl. O.P. are true and correct at the highest, even according to petitioner, the alleged offences under Indian Penal Code (making a document using blank signed stamp papers) was committed much before the aforementioned arbitration OP was filed in this court, this stated position of the petitioner by itself takes the matter outside the purview of section 195(1)(b) Cr.P.C. if Iqbal Singh Marwah principle is applied. 19. The principle that criminal proceedings can go on simultaneously is indisputable as the degree of proof required in two proceedings are different, i.e. preponderance of probability and proof beyond doubt respectively. There is no difficulty or quarrel regarding this proposition. In this case, i.e. captioned Crl. 19. The principle that criminal proceedings can go on simultaneously is indisputable as the degree of proof required in two proceedings are different, i.e. preponderance of probability and proof beyond doubt respectively. There is no difficulty or quarrel regarding this proposition. In this case, i.e. captioned Crl. O.P. this court is concerned with limited scope of whether there is anything that is prima facie demonstrable to show that the alleged offence has been committed within the four corners of section 195(1)(b) Cr.P.C. warranting a direction to hold preliminary enquiry under section 340 Cr.P.C. Even a perusal of Crl. O.P. reveals that there is no whisper that any of the alleged offences adumbrated in section 195(1)(b) was committed when the said partnership deed, i.e. partnership deed dated 16.07.2019 was in the custody of this court. That by itself draws curtains on this matter or in other words, that is the end of the road for the petitioner in the captioned Crl. O.P. 20. In the light of the narrative, discussion and dispositive reasoning set out supra, this court has no hesitation in coming to the conclusion that captioned Crl. O.P. is not maintainable. Learned counsel for petitioner requested that petitioner's right to file and pursue a private criminal complaint and/or give a criminal complaint may please be preserved if this court is not inclined to hold that captioned Crl. O.P. is maintainable. Though this may tantamount to stating the obvious and also having been alluded to supra elsewhere in this order, owing to the specific request, it is made clear that if the petitioner files a separate private complaint or complaint, the same will be dealt with by the court/authorities concerned on its own merits and in accordance with law without being impeded in any manner by this order and for this purpose, it is further made clear that all questions, rights and contentions of petitioner are preserved/left open. As the captioned Crl. O.P. is being rejected as not maintainable, though obvious it is made clear that anything expressed in this order is only for the limited purpose of deciding maintainability and the sequitter is, anything contained in this order shall not be construed as an expression on the merits of the allegations. 21. Therefore, captioned Crl. O.P. is rejected as not maintainable preserving the rights of the petitioner and giving liberty in the aforesaid manner. 21. Therefore, captioned Crl. O.P. is rejected as not maintainable preserving the rights of the petitioner and giving liberty in the aforesaid manner. Owing to the nature of submissions made before this court, there shall be no order as to costs.